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COVID-19 the catalyst for “presumed innocence” for cyclists?

With the greater number of cyclists on the road there has been a higher rate of accidents involving cyclists being injured, some catastrophically.

With the recent lockdown and active encouragement from the Government to avoid public transport, the British public have hit the roads on their cycles en masse! It is easy to see why - fewer cars on the road, exercising to get out of the house, gyms closed and the weather have all made cycling a much more attractive exercise option. Reports of bike shops selling out have been commonplace. This trend towards micromobility has multiple wins for the Government, it also reduces emissions and could lead to savings for the NHS by improving the health of the population.

However, with the greater number of cyclists on the road there has been a higher rate of accidents involving cyclists being injured, some catastrophically. Unfortunately, also during this period some drivers have taken to driving faster due to the absence of traffic and now as more drivers return to the roads after a number of months away from the wheel, it is understandable that this question is being asked.

Presumed innocence for cyclists?

Quite rightly, safety of these vulnerable road users should be the highest priority and as we encourage more cyclists onto our roads the Government are becoming more aware of the need to review road infrastructure which would undoubtedly have the greatest effect on cyclists’ safety. However, there has been a further call from some to change the law on incidents involving cyclists and motor vehicles.  

Former Olympian and cycling gold medallist, Chris Boardman, has recently been in the news calling for a new law that would presume cyclists are innocent in road accidents thereby shifting the burden of proof to the driver of the motor vehicle to prove they were not to blame for the accident. The UK remains only one of five European countries which do not provide special status to cyclists in the civil law. In most European countries the starting point is that the driver of the motor vehicle is responsible for any incident involving a cyclist with some reduction in compensation where the cyclist is found at fault.  

Is a change in the law needed?

It is argued that a change in the law would heighten awareness of the motorist, encourage more cyclists onto the roads and reduce the level of accidents involving cyclists. However, the number of fatalities in the UK is relatively low; 1.6 per million inhabitants in 2016 compared with 5.9 in the Netherlands[1] for example. This statistic doesn’t account for the volume of cycle journeys undertaken but across most European countries the UK number is favourable. This perhaps suggests employing a presumed innocence system is not a major factor to improving cyclist safety.

Government statistics for “reported” incidents in 2018[2] confirm that whilst in 50% of the accidents involving cyclists there were no major contributory factors from the cyclist, where there were, the main factors were rider error or reaction, injudicious action, impairment or distraction and behaviour or inexperience. The behaviour of the motorist in these particular cases was not always recorded but to put this into context, in 2018 there were 13,823 reported accidents involving a motor vehicle and cyclist. For drivers of motor vehicles, the most common major contributory factors are driver error or reaction, behaviours or inexperience, injudicious action and impairment or distraction.

Practical steps including improved road infrastructure and greater safety awareness on the part of the cyclist (good lights, visible clothing and following the rules of the road) would be more likely to reduce the number of serious incidents. Undoubtedly, better education of motorists on safety awareness and how to drive with cyclists would help too.

Our current civil system arguably already affords cyclists an advantage due to the significance that is attached to the relative harm that can be caused by a motor vehicle.  

Impact of a change in law – the unwanted consequences. 

A change in burden of proof could increase the volume and cost of claims. It might also add to the workload of our public services. One would expect a greater onus on the police to investigate in more detail to ensure clear attribution of responsibility for accidents. Where there is no clear outcome attributing responsibility, and where cyclists may be fully or partially culpable (potentially even when a cyclist is in no way at fault), motorists may be keen to disprove a presumption of innocence, driving up the cost of claims and potentially requiring greater court time to resolve these issues.

One of the biggest issues one can foresee is the potential targeting of unsuspecting motorists by fraudsters. Staged accidents and bogus claims have driven up the cost of motor insurance for many years (cash for crash scams cost around £340m a year)[3]. A presumption of innocence or “strict liability” in cyclist accidents may be perceived by fraudsters as a relatively “easy win” to generate a new revenue stream whilst risking the health and safety of themselves and other road users causing a greater stress on the NHS.

These unwanted consequences and the impact of increasing claims costs are likely to lead to an increase in insurance premiums for motorists. Ultimately, it is important that there is a balance between compensating victims whilst at the same time keeping costs to all road users affordable and proportionate.

The safety of vulnerable road users is key

Any change in law and impact should be carefully considered. However, what is certain is that the Government need to look very carefully at ways in which to safely integrate more environmentally friendly and sustainable means of travel. Ensuring these vulnerable road users are protected is the key, whether this is through the introduction of presumed innocence, compulsory insurance for all road users, better infrastructure or improved safety awareness.

If you would like to discuss these issues in more detail, please do not hesitate to contact Jonathan Hodgkinson, Partner on 0151 242 6900 or email jonathan.hodgkinson@weightmans.com.

 

European Road Safety Observatory – Traffic Safety Basic Facts 2018

2 Dept for Transport statistics – reported road casualties Great Britain annual report 2018

3 Insurance Fraud Bureau

 

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